PWD2462

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00023305 (CA-00029878-004).

BACKGROUND:

This is an appeal of an Adjudication Officer’s Decision made pursuant to the Payment of Wages Act, 1991.  The appeal was heard by the Labour Court in accordance with Section 44 of the Workplace Relations Act, 2015. 

The following is the Court's Decision:

DECISION:

This is an appeal by Dainis Jirgens (“the Complainant”) against an Adjudication Officer’s Decision under the Payment of Wages Act 1991 (“the Act”) against his former employer C&D Foods Limited (“the Respondent”). 

The Adjudication Officer held that his complaint was well-founded.

This case is linked to EDA2455 and UDD2444 and TED2427 and TED2428. The Complainant was assisted by a Court appointed Interpreter during the hearing.

The following is the Determination of the Court.

Submissions of the Parties

The Complainant commenced employment with the Respondent company on 30 January 2017.  His employment was terminated on 29 January 2019.

The Complainant submits that he did not receive pay in lieu of notice or his outstanding annual leave and holiday entitlement when his employment was terminated by the Respondent on 29 January 2019. The Complainant submits that as he had accrued two years’ service by the date of termination of his employment, he was entitled to payment in lieu of two weeks’ notice.

The Respondent submits that the Complainant was paid all outstanding holiday entitlements on the termination of his employment. He received no notice payments as he was dismissed on the grounds of gross misconduct. At the hearing, the Respondent conceded in a linked appeal under the Unfair Dismissals Acts that the Complainant was unfairly dismissed under that Act, and that in those circumstances it accepted that the Complainant was entitled to payment in lieu of his notice period. The Respondent asserts that the Complainant had not accrued two years’ service when his employment was terminated, and accordingly his entitlement under the Minimum Notice and Terms of Employment Act 1973 is to payment in lieu of notice is one weeks’ pay.

The Applicable Law

Section 1 of the Payment of Wages Act 1991 provides in part as follows:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.

Section 5 of the Payment of Wages Act 1991 provides in part as follows:

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless–

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Deliberation and Findings

The Complainant’s representative confined her oral submission to the Court to an alleged contravention of the Act which related solely to the nonpayment of the Complainant’s notice entitlements.

The parties confirmed that the Complainant was entitled to payment in lieu of notice on the termination of his employment as prescribed under the Minimum Notice and Terms of Employment Act 1973. The parties were in dispute about what entitlement arose under the 1973 Act.

The Court invited the parties to comment on the Court’s jurisdiction under the Payment of Wages Act 1991 to determine the Complainant’s statutory entitlement under the Minimum Notice and Terms of Employment Act, 1973, in order to determine what wages were properly payable to him within the meaning of the 1991 Act.

No submissions or authorities were put to the Court to support the contention that the Court had jurisdiction under the 1991 Act to investigate a complaint about an alleged failure to afford the Complainant his statutory entitlements under the Minimum Notice and Terms of Employment Act 1973, or how such a complaint can properly be pursued as an alleged breach of the 1991 Act.

In PWD2236 Starrus Eco Holdings Limited T/A Panda / Greenstar and Ben Mandiche this Court determined that:

“…that in order to determine the appeal before it under the Act of 1991 it would first have to exercise a jurisdiction under the Act of 1973 in order to determine the wages properly payable to the Complainant on the occasion. No appeal under the Act of 1973 lies before the Court and consequently the Court lacks jurisdiction to decide upon an alleged breach of that Act.”

In the circumstance of this case, where the basis for the appeal under the Act of 1991 is that the Respondent is in breach of its obligations under the Act of 1973, the Cout finds that the appeal must fail.

The decision of the Adjudication Officer is varied accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
28th November 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Therese Hickey, Court Secretary.